Adams (a pseudonym) v The Queen; Bradley (a pseudonym) v The Queen - [2021] SASCA 147

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ADAMS (a pseudonym) v THE QUEEN; BRADLEY (a pseudonym) v THE QUEEN
[2021] SASCA 147
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
9 December 2021
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - STRIKING OUT AND WARNING TO JURY TO DISREGARD EVIDENCE
Application for permission to appeal and appeal against conviction.
The appellants were convicted by a jury of the offences of aggravated serious criminal trespass in a place of residence, aggravated assault causing harm, aggravated robbery, and false imprisonment as participants in a joint criminal enterprise to commit those offences.
In September 2017, a group of masked people entered and ransacked a residential property in Two Wells. Three cars and three motorbikes were stolen. An occupant was restrained, threatened with a knife, told to hand over phones, keys, and money, and was beaten and tasered.
The prosecution’s case was that the offence was committed by a group of six people in a joint criminal enterprise. The appellants denied being involved in the offending and the issue at trial was whether they could be identified as parties to the joint criminal enterprise.
The prosecution relied on evidence adduced at trial from an accomplice of the appellants that, inter alia, the offending was suggested to the accomplice by one of the appellants and the accomplice participated in the offending because he was asked to by that appellant’s brother, who was the national sergeant of an outlaw motorcycle gang.
The appellants challenge the admissibility and treatment of that evidence, and rely on three grounds of appeal: first, that the trial judge erred in admitting the evidence because it was not relevant and prejudicial in that it suggested to the jury that the appellants were involved or associated with the [redacted] motorcycle club and more likely to have committed the offence; secondly, in the alternative, that the trial judge erred in refusing to declare a mistrial or by not withdrawing the evidence from the jury; and thirdly, in the further alternative, that the trial judge’s directions to the jury as to the evidence were inadequate.
Held, per the Court, granting permission to appeal but dismissing the appeals:
1.      The trial judge did not err in admitting the impugned evidence of the appellant’s brother’s membership of the outlaw motorcycle gang. The evidence was relevant, and there was no significant potential for unfair prejudicial use by the jury against the appellants. In any event, any such potential was outweighed by the probative value of the evidence.
2.      The trial judge did not err in refusing to declare a mistrial or alternatively not withdrawing the evidence.
3.      The trial judge’s directions as to the permissible and impermissible uses of the impugned evidence were clear, correct, and comprehensive. There was no miscarriage of justice.
Smith v The Queen (2001) 206 CLR 650; HML v The Queen (2008) 235 CLR 334; R v Garner; R v Webb [2021] SASCA 68; R v H, T (2010) 108 SASR 86; R v Garner; R v Webb [2021] SASCA 68; R v Nieterink (1999) 76 SASR 56; R v Christie [1914] AC 545; House v The King (1936) 55 CLR 499; Sindoni v The Queen [2021] SASCA 138; Police v Dunstall (2015) 256 CLR 403; R v Swaffield (1998) 192 CLR 159; Australian Crime Commission v Stoddart (2011) 244 CLR 554; Pfennig v The Queen (1995) 182 CLR 461; R v Headon [2014] SASCFC 4, considered.

ADAMS (a pseudonym) v THE QUEEN; BRADLEY (a pseudonym) v THE QUEEN
[2021] SASCA 147
Court of Appeal – Criminal: Livesey P, Doyle and Bleby JJA

THE COURT: The two appellants (Ms Adams and Ms Bradley),[1] and a third person (Mr Cahill), were found guilty by a jury of various offences arising from a home invasion committed in the early hours of 8 September 2017. A group of offenders forced their way into a house in Two Wells, assaulted and restrained an occupant, and stole items including several vehicles.
[1] The names of the parties and the accomplice have been replaced with pseudonyms for the purposes of publication.
In this appeal against conviction, both appellants rely upon three grounds of appeal which challenge the admissibility and treatment of the evidence of an accomplice (Mr Daley) to the effect that Ms Adams suggested the offending to him, and that he participated in it because he had been asked to do so by her brother, Mr Adams,[2] who was the national sergeant of the [redacted] motorcycle club.
[2] Also a pseudonym.
The appellants contend that as Mr Daley’s motive or reason for offending was not in issue, and there was otherwise no evidence connecting the appellants to the [redacted] motorcycle club, the evidence should have been excluded as either having no probative value and hence being irrelevant, or because it was more prejudicial than probative. Alternatively, the evidence should have been withdrawn from the jury or a mistrial declared. In the further alternative, the directions given in relation to this evidence were inadequate and resulted in a miscarriage of justice.
The respondent contends that the evidence was relevant as explanatory of Mr Daley’s preparedness to involve himself in offending suggested by Ms Adams, and hence the credibility of his evidence implicating the appellants in that offending. The respondent contends that the evidence was properly admitted and was the subject of appropriate directions that guarded against any improper use. As such, the admission and treatment of the evidence did not involve any error, or occasion any miscarriage of justice.
The prosecution case
There were three co-accused at trial, Ms Adams, Ms Bradley and Mr Cahill. Three other offenders had earlier resolved charges against them arising out of the same incident.
The prosecution case was that at least six people entered a remote property in Two Wells in the early hours of 8 September 2017 without the consent of the occupiers. The victims, JA and NS were present at the time. The entry into the house comprised count 1 (aggravated serious criminal trespass in a place of residence).
JA was then tasered, punched and kicked. He suffered a laceration to the nose, and swelling and bruising. That conduct comprised count 2 (aggravated assault causing harm). A male, who appeared to be the leader of the group, demanded phones, keys and money. Cars and motorbikes were stolen. That conduct comprised count 3 (aggravated robbery). Throughout the home invasion, JA was bound and taped. That detention comprised count 4 (false imprisonment).
The prosecution case was presented on the basis of a joint criminal enterprise. There was no real issue at trial, and certainly no issue on appeal, that the offences described above were committed. Mr Cahill accepted that he was present, but denied that he had any involvement in the commission of the charged offences, or was a party to any joint criminal enterprise to commit those offences.[3] The appellants, Ms Adams and Ms Bradley denied that they were present or involved. Thus the issue at trial so far as the appellants were concerned was essentially one of identity; that is, whether they were part of the group of offenders who attended the Two Wells premises in the early hours of 8 September 2017. At least in relation to Ms Bradley, there was also an issue as to the scope of any joint criminal enterprise in which she was involved.
[3] Mr Cahill indicated a preparedness to plead guilty to an alternative to count 3, namely aggravated theft. However, the prosecution declined to accept this plea in satisfaction of count 3.
The prosecution case on the issue of identity comprised two parts. An accomplice, Mr Daley, gave direct evidence of the involvement of the appellants in the planning and execution of the offences. There was also a body of circumstantial evidence probative of the appellants’ presence and involvement.
The evidence of Mr Daley
Mr Daley’s evidence was that he became aware of the plan to commit the home invasion on 7 September 2017. He said that he received a text message from Ms Adams suggesting that they catch up at her place. He arrived at Ms Adams’ house at around lunchtime. In addition to Ms Adams, her partner (AB) and Ms Bradley were also present.
Mr Daley said that Ms Adams spoke to him and Ms Bradley “about picking up some cars from Two Wells”. While Ms Adams did not say anything at that point about whose property it was, Mr Daley’s evidence was that she mentioned her brother’s knowledge of the plan. Mr Daley’s evidence also included reference to his connection with Mr Adams through their involvement in the [redacted] motorcycle club.
Mr Daley’s evidence in this respect was as follows:
Q. Did you ask her or did she say anything about anyone else knowing about it.
A. Yes, her brother.
Q. And who’s her brother.
A. [Mr Adams].
Q. Have you previously known [Mr Adams] yourself.
A. Yes, I have.
Q. How did you know [Mr Adams].
A. I was in a motorcycle club with him.
Q. And what motorcycle club was that.
A. [Redacted].
Q. What was the state of your relationship with [Mr Adams] at that time.
A. We was in the club together. We lived together.
Q. Did you agree to help [Ms Adams] moving some cars.
A. Yes.
Q. And why was that.
A. Only because her brother asked us to.
Q. And why is it if her brother asked you to you decided that was appropriate.
A. He was my national sergeant at the time.
Mr Daley’s evidence was that he then returned to his house where he was hosting a birthday party for Ms Adams’ daughter. Various people attended, including Ms Adams, Ms Bradley, Mr Cahill, AB and IG. There was further discussion about the moving of cars. Each of the people just mentioned were involved in the discussion, although Mr Cahill was “in and out of the conversation”. The discussion included reference to the need to “grab” JA when they arrived at the property. Mr Daley said that his understanding was that the occupants of the Two Wells property “had some money problems with people I knew and that’s why we were retrieving some vehicles”.
Mr Daley then described a group of them gathering in the early hours of the following morning and driving in two cars to the property in Two Wells. The group consisted of Mr Daley, Mr Cahill, AB, IG and the two appellants. He also described the offending that occurred once at the property.
On Mr Daley’s evidence, he knew Ms Adams, her boyfriend and her brother. Ms Adams informed him of the plan, was party to the various conversations about the plan (including the need to grab JA when they arrived at the property) and participated fully in the offending, including the movement of vehicles after they had left the Two Wells property.
As to Ms Bradley, Mr Daley’s evidence was that she was a friend of his, and was present during the discussions both at Ms Adams’ house and at his house on the day before the offending. Ms Bradley also attended the Two Wells property, and assisted to locate the vehicles that they stole.
The credit of Mr Daley, and in particular whether his evidence as to the involvement of the appellants could be accepted, was a central issue at trial. At trial, counsel for Ms Adams and Ms Bradley both cross-examined Mr Daley, and challenged his credit. They suggested in their closing addresses that Mr Daley was lying. Counsel for Ms Adams directly challenged Mr Daley’s suggestion that she (Ms Adams) was the organiser, suggesting that Mr Daley was the organiser and was falsely blaming or implicating Ms Adams. Counsel for Ms Bradley suggested that Mr Daley was a dishonest witness who falsely inserted Ms Bradley into the narrative of the planning discussions and offending.
The circumstantial case against the appellants
As mentioned, in addition to the direct evidence of Mr Daley, the prosecution also relied upon a circumstantial case as to the presence and involvement of the defendants.
The circumstantial evidence against Ms Adams consisted of the following:
1.Her DNA[4] was located on the handle of a black knife left by the offenders at the victim’s property.
2.Her DNA was located on a can of drink located in one of the stolen vehicles.
3.Her mobile phone, when searched by police, contained an aerial map of JA’s property and photographs from his Facebook profile – being evidence of preparation for the offence.
4.Her telephone was located in the area of the Two Wells cell tower at 2.20 am, and hence shortly before the offending (at about 3.00 am).
5.Safe-T-cam photographs, and a video of the cars taken by a Ms Martin, which showed one of the stolen vehicles displaying number plates registered to Ms Adams’ own vehicle.
6.An SMS conversation with “Drumgoon” prior to the date of the offence, who enquired whether Ms Adams could get motorbikes and quads.
7.CCTV footage from the Roseworthy BP service station showing the offenders in convoy shortly after the offending. The female matching Ms Adams’ description is seen wearing a jumper corresponding with one police seized from her house during a search in January 2018.
[4] The reference to “her DNA” is used for convenience in these reasons, but the evidence at trial was, of course, expressed in terms of the likelihood of certain hypotheses, and included consideration of the possibility of transfer DNA.
The circumstantial evidence against Ms Bradley consisted of the following:
1.An SMS conversation between Ms Bradley and Mr Daley located on Ms Bradley’s phone when it was seized by police. It included a message sent by Ms Bradley to Mr Daley on 7 September 2017 stating “Aye, love, sis has a big, big job. Needs to talk to all of us.”[5]
2.The telephone records showing her mobile phone in Freeling at 11.30 pm on the evening of 7 September 2017, and then Gawler at 6.13 am the following morning.
[5] There was evidence from Ms Adams that both Ms Bradley and Mr Daley sometimes referred to her as “sis”.
The two victims also gave evidence. Because the offenders were wearing masks or balaclavas, their evidence was confined to a description of aspects of the physical characteristics of the offenders. The prosecution did not suggest that the jury could be satisfied from this evidence that any of the defendants were involved in the offending, but did suggest that the descriptions given of the offenders added to the circumstantial case against Ms Adams (and Mr Cahill) in that they were, at the very least, not inconsistent with the involvement of Ms Adams (and Mr Cahill) in the offending.
The grounds of appeal
Both appellants rely upon the same grounds, namely:
1.The trial judge erred in admitting the evidence of the appellant’s brother’s membership of the [redacted] motorcycle club.
2.The trial judge erred in refusing to declare a mistrial or, alternatively, in not withdrawing the evidence complained of in Ground 1 from the jury.
3.The trial judge’s directions on the evidence complained of in Ground 1 were inadequate.
The appellants both require permission to appeal. Ms Bradley also requires an extension of the time within which to bring her application for permission to appeal. The respondent conceded that permission to appeal was appropriate, and did not oppose the extension of time sought by Ms Bradley.
Ground 1: admissibility of the evidence
The appellants contend that the trial judge erred in admitting Mr Daley’s evidence to the effect that he and Mr Adams (Ms Adams’ brother) were members of the [redacted] motorcycle club, with Mr Adams being the national sergeant. We shall refer to this as the impugned evidence. It will be recalled that the context in which Mr Daley gave the impugned evidence was in the course of him explaining that he had agreed to help Ms Adams with the planned home invasion “only because her brother asked us to”.
The appellants contend that the impugned evidence was irrelevant; that its only identified relevance was the motive of Mr Daley for participating in the offending, which was not an issue at trial.
In the alternative, the appellants contend that, even if relevant, the impugned evidence should have been excluded in an exercise of the trial judge’s discretion to exclude evidence that is more prejudicial than probative. The prejudicial effect of the impugned evidence was said to lie in its capacity to lead the jury to reason (unfairly and incorrectly) to the effect that the offending might have been motivated by [redacted] motorcycle club business; that Ms Adams might have been involved in [redacted] motorcycle club business because her brother was a senior member of the [redacted] motorcycle club; and that Ms Adams was thus more likely to have been involved in the offending. So far as Ms Bradley was concerned, the capacity to lead to prejudicial reasoning was similar, although less direct. The prejudicial reasoning was said to be a form of “guilt by association” reasoning, which included drawing upon the reputation of motorcycle clubs for involvement in criminal activities.
Dealing first with the issue of relevance, the appellants sought to confine the notion of relevance by reference to the matters in issue at trial, with a focus upon the elements of the offences of which the appellants are charged. However, as the authorities upon which the appellants rely acknowledge, relevance must be considered by reference to not only the elements of offences charged, but also the subsidiary issues that arise in relation to facts that may be probative of those ultimate issues.[6] Importantly, these subsidiary issues may extend to matters that are necessary to contextualise and explain matters that a jury must consider and determine, including the credibility of witnesses.
[6] Smith v The Queen (2001) 206 CLR 650 at [6]-[7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
As Heydon J summarised in HML v The Queen:[7]
Subject to any exclusionary rule, or to the operation of any discretion to exclude evidence, evidence is admissible either if it is relevant to a fact in issue, or if it is relevant to a fact which is relevant to a fact in issue. One category of the latter kind is circumstantial evidence, of which uncharged acts evidence is an example. "Facts in issue" are of two kinds – those which may be called "main facts in issue", and those which may be called "subordinate or collateral facts in issue". In civil cases the "main facts in issue" are those which are commonly defined by the pleadings or by some other technique of definition, but which, whether so defined or not, are those which the applicable legal principles require to be proved if some cause of action or some defence or some answer to a defence is to be made out. In criminal cases the "main facts in issue" are those which the prosecution is obliged to prove if guilt is to be established, or which the defence must prove if some positive defence is relied on. Examples of "subordinate or collateral facts in issue" are those which affect the credibility of a witness, or the admissibility of particular items of evidence.
[7] HML v The Queen (2008) 235 CLR 334 at [274] (Heydon J) (omitting citations).

The notion of relevance was recently considered at some length by this Court in R v Garner; R v Webb.[8] In explaining the potential relevance of evidence to subsidiary issues in a case, the Court said:[9]
Depending upon the way in which the prosecution seeks to prove its case, or the way in which the defence is conducted, it may appear, as a matter of fact, that an element of the offence charged will not be established beyond reasonable doubt unless some subsidiary fact, relevant to a fact in issue, is proved. Thus, in a criminal case, attention must be directed to the elements of the offence charged, the particulars of those elements and any circumstances which bear upon the assessment of probability.[10] Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. That is, it may explain a statement or an event that would otherwise appear curious or unlikely; it may cut down, or reinforce, the plausibility of something that a witness has said; or it may provide a context helpful, or even necessary, for an understanding of a narrative.[11] This evidence may be relevant and admissible if it provides an explanatory framework for other evidence.
[8] R v Garner; R v Webb [2021] SASCA 68.
[9] R v Garner; R v Webb [2021] SASCA 68 at [26] (Kelly P, Lovell and Bleby JJA).
[10] R v H, T (2010) 108 SASR 86 at [64].
[11] HML v The Queen (2008) 235 CLR 334 at [6].
In the present case, the ultimate issues were the elements of the various offences charged against the appellants. Mr Daley’s motive or reason for participating in the offending was, of course, not one of these issues. Nor was it a fact or circumstance, and hence an issue, that bore directly upon those ultimate issues.
However, Mr Daley’s motive or reason for participating in the offending was, in our view, a subsidiary issue that was relevant to an assessment of the credibility of Mr Daley’s evidence as to the appellants’ presence and involvement in the offending.
At trial, the appellants’ challenge to Mr Daley’s version of events included a challenge to his evidence that it was Ms Adams who suggested and organised the offending. It was suggested to the jury that Mr Daley was the organiser, and that he had given false evidence that implicated Ms Adams (and Ms Bradley) for his own purposes.
In the circumstances, Mr Daley’s reason for being prepared to accede to Ms Adams’ suggestion and organisation of the offending was relevant. If accepted, his explanation that he was prepared to participate because the planned offending was with the knowledge, or at the request, of Mr Adams, in circumstances where both Mr Adams and Mr Daley were members of the [redacted] motorcycle club and Mr Adams was the national sergeant of that club, added context and plausibility to Mr Daley’s evidence. It made more plausible what might otherwise have been said to be an implausible suggestion that he agreed to participate simply because Ms Adams asked him to.
A very general analogy may be drawn with the relevance of evidence of uncharged acts often adduced in cases involving sexual offences committed against young persons. As Doyle CJ explained in R v Nieterink:[12]
The evidence is, as the judgments state, evidence which places the charged acts in their context, and which might assist the jury in better understanding what would otherwise appear to be surprising or unlikely conduct by the victim, in particular in submitting to criminal conduct or in failing to complain of it, often the relevant failure being a failure to complain to a parent or guardian. …
…
First of all, the evidence may be relevant because without it the jury could hardly understand the context in which the alleged offences occurred. As in this case, evidence of uncharged acts will often include evidence of acts that preceded the commission of the first offence charged. This evidence may disclose a course of events leading up to the first charged incident, which enables the jury to understand that the incident did not, as it were, "come out of the blue". The evidence will also sometimes explain how the victim might have come to submit to the acts the subject of the first charge. Without the evidence, it would probably seem incredible to the jury that the victim would have submitted to what would seem an isolated act, and likewise it might seem incredible to the jury that the accused would suddenly have committed the first crime charged. The evidence of uncharged acts may also disclose a series of incidents that make it believable or understandable that the victim might not have complained about the incidents charged until much later in the piece, if at all. … The evidence in the present case was relevant on these bases.
[12] R v Nieterink (1999) 76 SASR 56 at [41]-[43] (Doyle CJ, Perry and Mullighan JJ agreeing).
Such reasoning is an illustration of the contextual relevance described in the passage extracted above from the Court’s reasons in R v Garner; R v Webb.[13]
[13] R v Garner; R v Webb [2021] SASCA 68 at [26] (Kelly P, Lovell and Bleby JJA).
While acknowledging the very different factual and legal context of the present case, we nevertheless consider that analogous reasoning is apposite. The evidence given by Mr Daley as to his reason for participating in the offending suggested by Ms Adams was relevant to an assessment of the context, plausibility and ultimately credibility of his evidence as to the circumstances of the offending, including the nature and extent of the appellants’ involvement.
We accept that, to some extent at least, the probative force of the impugned evidence was dependent upon the jury attaching some significance to the nature of the organisation of which Mr Daley said he and Mr Adams were both members. Put another way, the evidence would have had less probative force (and perhaps no probative force) if Mr Daley had said merely that he was prepared to participate because the request had come from Ms Adams’ brother, who was a senior member of some other organisation of which they were both members (such as a sporting club).
But we see no difficulty with this. In our view, a juror would be entitled to draw upon their knowledge as members of the society in which we live that outlaw motorcycle clubs, such as the [redacted] motorcycle club, have a culture of loyalty and violence that might make it inherently plausible that Mr Daley, as a member of the [redacted] motorcycle club, would be prepared to participate in violent offending at the request of a more senior member of that club.
Counsel for the appellants challenged this reasoning, contending that it would be pure speculation to attach any probative significance to Mr Daley’s membership of a motorcycle club of which Mr Adams was the national sergeant. They contended that in the absence of some evidence (either from Mr Daley, or from some other person with appropriate experience or expertise) as to the culture of motorcycle clubs including the [redacted] motorcycle club,[14] the impugned evidence had no probative force.
[14] Such as the evidence referred to in R v Garner; R v Webb [2021] SASCA 68 at [35]ff (Kelly P, Lovell and Bleby JJA).
We do not accept this contention. Even accepting that the probative force of the impugned evidence could have been affected by such evidence, we do not accept that it had no probative force absent such evidence. In other cases, the membership of a motorcycle club may be relied upon to support the proposition that there was a particular motive or propensity on the part of a defendant. In that kind of case, the risk of prejudicial reasoning is particularly acute. Accordingly, in that kind of case, it may be that evidence of membership of a motorcycle group will not be admissible without accompanying evidence to assist the jury to understand and assess its probative force. That may be necessary to ensure that the probative value of the evidence outweighs its prejudicial capacity in the particular case. But the relevance and probative value of the evidence to the issues in this case were not dependent upon accompanying evidence. And, assuming the evidence was admissible without the accompanying evidence, whether the culture of the club, and the implications of membership, were explored further in the evidence was a matter for the forensic judgment of the parties. It might well have been contended in this case that accompanying evidence was unnecessary, if not unduly prejudicial, given the confined nature of the issue concerning Mr Daley’s motive.
For the sake of completeness on the topic of relevance, we note that when the admissibility of the impugned aspects of Mr Daley’s evidence was the subject of objection during the voir dire, it was anticipated that his evidence as to his reason for participating in the offending would include that he owed a debt to Mr Adams. We accept that the existence of a personal obligation owed to Mr Adams may well have added to the probative force of the evidence. Ultimately that evidence was not given at trial. As the appellants accepted, this aspect of the procedural history of the matter is ultimately of no moment. The relevance and admissibility of Mr Daley’s evidence must stand or fall on the evidence as it emerged at trial. For the reasons we have given, we accept that the impugned evidence was relevant. We turn now to consider whether the trial judge erred in failing to exclude the evidence on the basis that it was more prejudicial than probative.
A trial judge’s exclusion of evidence on the basis that it is more prejudicial than probative is referred to as an exercise of the Christie discretion.[15] Whether it is, strictly speaking, a discretion in the sense that attracts the principles of appellate restraint set out in House v The King,[16] as opposed to an evaluative judgment that ultimately requires a unique answer, may be an open question.[17] However, the issue is moot in a case, such as the present, where the admissibility of the evidence was determined by the trial judge on the basis of an expectation as to the content of the evidence that was not realised. In the present case, the admissibility of the evidence must be determined by reference to this Court’s assessment of whether, as the evidence in fact emerged, the impugned evidence of Mr Daley was more prejudicial than probative.
[15] R v Christie [1914] AC 545.
[16] House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).
[17] R v Garner; R v Webb [2021] SASCA 68 at [73] (fn 42) (Kelly P, Lovell and Bleby JJA); see also Sindoni v The Queen [2021] SASCA 138, [32]-[34] (Livesey P, Doyle and Bleby JJA).
While trite, it is important to remember in this context that evidence is not prejudicial merely because it may lead the jury to reason in a manner adverse to the defendant. Rather, reference to the prejudicial capacity of evidence is a reference to its capacity to lead the jury to reason in a manner that would be incorrectly or unfairly adverse to the defendant. As Nettle J said in Police v Dunstall:[18]
In the case of the Christie discretion, evidence is excluded where and because it would be unfair to an accused to admit evidence of which the capacity to lead a jury to reason correctly to a conclusion of guilt is outweighed by its capacity to lead the jury to reason incorrectly to a conclusion of guilt, and consequently would expose the accused to an unacceptable risk of being wrongly convicted of a crime of which he or she is presumed to be innocent.[19]
[18] Police v Dunstall (2015) 256 CLR 403 at [62].
[19] R v Swaffield (1998) 192 CLR 159 at [62]-[65] (Toohey, Gaudron and Gummow JJ); Australian Crime Commission v Stoddart (2011) 244 CLR 554 at [64] (Heydon J); see also Pfennig v The Queen (1995) 182 CLR 461 at 528-529 (McHugh J).
We have earlier set out the prejudicial reasoning to which the appellants contend they were exposed by the admission of the impugned evidence. In our view, the spectre of the jury engaging in such prejudicial reasoning was more theoretical than real, and was, in any event, capable of being adequately addressed through appropriate directions to the jury directing them against engaging in any such reasoning.
In challenging the prejudice asserted by the appellants, the respondent points to the limited nature of the impugned evidence, describing it as brief and relating to a minor factual topic. The respondent adds that the evidence was not mentioned by the prosecutor in his closing address, and that it was counsel for Ms Adams who sought to address the evidence in his closing address. We do not accept these submissions. As counsel for the appellants submitted, even brief evidence (such as passing reference to a person’s membership of a motorcycle club) may be very prejudicial, depending upon the nature of the case, and the matters in issue. Further, the brevity of the evidence, and the lack of any express reliance upon that evidence by the prosecutor his or her closing address, may speak just as much to its limited probative value as to its prejudicial value.
Be that as it may, we do think there was any significant potential for prejudicial reasoning in the present case. The impugned evidence revealed that Mr Daley and Mr Adams were members of the [redacted] motorcycle club. Thus, to the extent that the jury might have associated membership of the [redacted] motorcycle club with membership of an organisation that had a culture of loyalty and violence, this was an association that reflected upon Mr Daley and Mr Adams, and not the appellants. The evidence did not suggest that Ms Adams or Ms Bradley were members of the [redacted] motorcycle club. Whilst the jury might be expected to have assumed that Ms Adams would have known that her brother, and perhaps also Mr Daley, were members of the [redacted] motorcycle club, this did not reflect directly upon her. And there was no evidence that Ms Bradley knew of these connections.
We accept that there was at least a theoretical risk that the jury might, in the absence of any directions from the trial judge, and in a very loose and general way, have speculated about the implications of the potential involvement of the [redacted] motorcycle club in the offending, and whether this might have assisted them in determining whether, and to what extent, Ms Adams and Ms Bradley might have been involved. But to the extent that there was a risk that a jury might engage in some form of prejudicial speculation or reasoning along these lines, we consider that this was a risk that was capable of being addressed through appropriate directions to the jury.
In our view, to the extent that the impugned evidence had a prejudicial capacity, it did not outweigh its probative capacity. There was no error in failing to exclude the evidence.
Ground 2: failure to declare mistrial or withdraw the evidence from the jury
During the course of submissions, it was acknowledged that, if the appellants do not succeed on Ground 1, then this ground does not require separate consideration. In other words, it was accepted that if, contrary to Ground 1, the impugned evidence (as it in fact emerged) was relevant and admissible, then there was no basis for contending that the judge erred in failing to declare a mistrial or to withdraw the evidence from the jury. Similarly, to the extent that the admissibility of the evidence was dependent upon its prejudicial capacity being the subject of appropriate directions to the jury, then that was a matter properly considered under Ground 3.
In a case where some unexpected evidence emerges during the course of a trial, the appeal is sometimes analysed only through the prism of whether the failure to declare a mistrial or withdraw the evidence from the jury resulted in a miscarriage of justice.[20] However, that analysis is premised upon an assumption that the evidence was not admissible, the issue being whether the emergence of that evidence resulted in a miscarriage of justice. Determination of that issue will in turn require consideration of the prejudicial effect of the evidence in the context of the evidence as a whole, and the capacity for that prejudicial effect to be adequately addressed through appropriate directions to the jury. In circumstances where the impugned evidence, even though unexpected in its precise content, was nevertheless admissible, we do not think there is any basis for contending that the trial judge ought to have declared a mistrial or to have withdrawn the evidence from the jury. The only issue that remains is the adequacy of the directions in fact given to address any prejudice likely to be associated with the evidence. It is to that issue which we now turn.
[20] See, for example, R v Headon [2014] SASCFC 4 at [18] (Vanstone J, Kourakis CJ and Stanley J agreeing).
Ground 3: adequacy of directions given in relation to the evidence
The appellants contend that the directions given by the trial judge in relation to the impugned evidence of Mr Daley were inadequate in that they both failed to identify the permissible use of the evidence, and failed to adequately guard against the prejudicial and impermissible use of that evidence. On the appellants’ argument, these inadequacies in the directions given resulted in a miscarriage of justice requiring the intervention of this Court.
The starting point for consideration of this contention is the terms of the directions given by the trial judge in relation to the impugned evidence:[21]
1.   Further, you heard Mr Daley give evidence that he knew Ms Adams' brother … as they were in a motorcycle gang, the [redacted] motorcycle club, together and that Andrew was the national sergeant. He said he had agreed to help Ms Adams move some cars "only because her brother asked us to".
2.   I must direct you that there is no evidence that any of the three accused were or are in any way involved with the [redacted] motorcycle club. Further, there is no evidence that Mr Cahill or Ms Bradley knew that Mr Daley had any association with the [redacted] motorcycle club. You must put this evidence to one side when you are considering the case as against each accused.
3.   If you accept this aspect of Mr Daley's evidence then it is permissible for you to use the evidence to understand why may have participated in the offending. However, it is impermissible for you to reason that insofar as any of the accused knew or were friends or acquaintances of Mr Daley, that their association with someone like him, a person who has admitted to participating in serious offending and to being a member of a motorcycle gang, means that they themselves are of bad character and therefore the type of person who is more likely to have committed the offences.
4.   Similarly, if you accept what Mr Daley said as to [Mr Adams’] involvement with the [redacted] motorcycle club, you must not jump to the conclusion that Ms Adams, on account of being Mr Adams’ sister, is guilty by association with him. You must not use that evidence to reason that Ms Adams, being a sister of a gang member, is the type of person who is therefore more likely to have committed the offences.
5.   On the same note, if you accept Mr Daley's evidence that Ms Adams' former partner, AB, was involved in the offending, you must not reason that Ms Adams, being his former partner, is guilty by association with him and because he was her partner, at the time, that she is the type of person who is therefore more likely to have committed the offences. That type of reasoning is impermissible reasoning; again, as it denies the accused the presumption of innocence.
[21] Numbering inserted for ease of reference.
The trial judge commenced in paragraph [1] with an accurate summary of the impugned evidence.
In paragraph [2], recognising that a suggestion of membership or involvement with the [redacted] motorcycle club might be prejudicial, her Honour directed the jury that there was “no evidence that any of the three accused were or are in any way involved with the [redacted] motorcycle club”. In this way, her Honour confined any suggestion of membership of, or involvement with, the [redacted] motorcycle club to Mr Daley and Mr Adams, while at the same time quarantining the defendants from any suggestion of membership or involvement.

The trial judge went further in relation to Mr Cahill and Ms Bradley, adding that there was no evidence that they knew that Mr Daley had any association with the [redacted] motorcycle club. While this removed Mr Cahill and Ms Bradley even further from any suggested association with the [redacted] motorcycle club, it was appropriate that the trial judge did not extend this direction to Ms Adams. Given that Mr Adams was her brother, and that she appeared to have very close ties with Mr Daley,[22] it would have been unrealistic for her Honour to suggest to the jury that Ms Adams was not aware of Mr Daley’s association with [redacted] motorcycle club. However, we do not think that the omission of Ms Adams from this additional direction in any way undermined the direction that had been given in the preceding sentence, or otherwise opened the door for the jury to infer some connection or association between Ms Adams and the [redacted] motorcycle club going beyond knowledge of her brother’s and Mr Daley’s association with that club.
[22] This was apparent from the evidence of Mr Daley, as well as the very fact that he was hosting her child’s birthday party on the day the offending was, on his evidence, discussed and planned.
The final sentence in paragraph [2] was by way of emphasis of the matters addressed in the preceding two sentences. It was an instruction to the jury “to put this evidence to one side” – that is, to put the evidence of involvement with the [redacted] motorcycle club to one side – when considering the case against each accused. This was an instruction not to engage in any prejudicial reasoning based upon some assumed or inferred association between the defendants and the [redacted] motorcycle club.
In paragraph [3], the trial judge identified the permissible use of the evidence, namely to assist the jury in understanding why Mr Daley may have participated in the offending. The trial judge might usefully have elaborated upon the relevance and permissible use of the evidence outlined earlier in these reasons, and in particular its link to the plausibility and credibility of Mr Daley’s evidence. But we do not think this was necessary. The trial judge’s succinct statement of the relevance of the evidence was, in our view, adequate to identify its permissible use.
In the balance of paragraph [3], and in paragraphs [4] and [5], the trial judge gave further directions as to the impermissibility of certain types of prejudicial reasoning. In paragraph [3], her Honour warned the jury against ‘bad person’ reasoning in respect of all three defendants by reason of their association with Mr Daley. And in paragraphs [4] and [5], her Honour warned against ‘guilt by association’ reasoning in respect of Ms Adams by reason of her association with Mr Adams and AB respectively.
In our view, her Honour’s directions as to the permissible and impermissible uses of the impugned evidence of Mr Daley were clear, correct and comprehensive. They were sufficient to eliminate any risk of prejudicial reasoning on the part of the jury. It follows that the appellants have not established any inadequacy in the trial judge’s directions that was productive of a miscarriage of justice.
Conclusion
For the reasons set out, we grant Ms Bradley an extension of the time within which to seek permission to appeal and grant both appellants permission to appeal. However, we dismiss their appeals.